Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-07-06
Last-Modified: 1999/06/15
We have already replied to this contention when we dealt
with the first two jurisdictional contentions. The reply is
that the Appellant is a `fugitive from justice' from the
point of view of the law of nations, since the crimes that
were attributed to him are of an international character and
have been condemned publicly by the civilized world (see
Resolution No. 96(1) of the United Nations Assembly of
11.12.46 on `the Crime of Genocide'); therefore, by virtue
of the principle of universal jurisdiction, every country
has the right to try him. This jurisdiction was
automatically vested in the State of Israel on its
establishment in 1948 as a sovereign state. Therefore, in
bringing the Appellant to trial, it functioned as an organ
of international law and acted to enforce the provisions
thereof through its own laws. Consequently, it is
immaterial that the crimes in question were committed at a
time when the State of Israel did not exist, and outside its
territory. Indeed, Counsel for the Appellant has on this
point confused the question of the substantive penal
jurisdiction of the State of Israel with the question
whether his client enjoys immunity from the exercise of that
jurisdiction against him by reason of the circumstances of
his abduction. These two questions are entirely separate
from one another. As has been indicated, the moment it is
admitted that the State of Israel possesses criminal
jurisdiction both according to local law and according to
the law of nations, it must also be conceded that the Court
is not bound to investigate the manner and legality of the
Appellant's detention. This indeed is the conclusion to be
drawn from the judgments upon which the District Court
rightly relied.
(b) Counsel for the Appellant also argued that in the
Resolution of the United Nations Security Council dated
23.3.60, the Government of Israel was requested to make
appropriate reparation to Argentina for the above-mentioned
incident; hence the matter involves a violation of
international law, and in these circumstances it cannot be
accepted that the Court should refuse to examine the factual
question of whether the Government of Israel was a party to
the abduction of the Appellant.
We cannot accept this contention either. The text of the
resolution appears in extenso in paragraph 40 of the
Judgment, and from the operative part thereof - which refers
to the question of reparation - it emerges clearly that all
that the Security Council sought to do was to cause a
settlement of the dispute which had arisen between the two
countries in connection with Argentina's complaint of the
violation of her sovereignty. As the Court has shown,
insofar as there was any such violation by the Government of
Israel, the Appellant cannot benefit by it, and therefore
what was said in the resolution regarding the settlement of
the dispute between the two countries cannot avail the
Appellant or accord him any rights, especially as the
dispute has meanwhile been settled.
Moreover, in the preamble to the resolution it is stated
that:
"Mindful of the universal condemnation of the persecution of
the Jews under the Nazis and the concern of the 0people in
all countries that Eichmann should be brought to appropriate
justice for the crimes of which he is accused.
"Noting at the same time that this resolution should in no
way be interpreted as condoning the odious crimes of which
he is accused."
These two passages give expression - and precisely because
the whole world condemns the persecution of Jews by the
Nazis - to the international interest involved in the
prosecution of the Appellant for the crimes of which he was
accused; and their language, including the expression "to
appropriate justice," cannot be interpreted otherwise than
in the sense that the State of Israel, too, is among the
countries which must be taken into account for this purpose.
After all, the Security Council well knew that Israel was
holding the Appellant in custody in order to place him on
trial here, but nevertheless did not give the slightest hint
of an objection to this course.
(c) Another submission of Counsel for the Appellant was that
the Court was not justified in inferring from the joint
communique of the Governments of Argentina and Israel, dated
3.8.60, the fact that the former has waived her claims, but
only that this issue has been terminated for the purpose of
preventing `diplomatic friction' because of the incident.
Counsel for the Appellant stated that he read in the press
of a new approach of Argentina to Israel on the same issue,
and therefore asked to call the Ministers of Justice of the
two countries as witnesses to be interrogated on this fact.
This submission is without substance. The language of the
said communique is clear and unequivocal, and the Court was
right in the construction which it put upon it. Therefore,
there is no point in acceding to Counsel's request.
(d) The last point raised by Counsel for the Appellant was
that as an international law imposes obligations on the
individual, so also does it grant him rights, and here the
Appellant's right to freedom and personal security, a right
vested in him by international law, has been violated. In
support of this contention, he based himself on Article 5 of
the European Convention for the Protection of Human Rights
and Fundamental Freedoms which was signed in Rome on
4.11.50. The short reply of the Attorney General was that
the State of
Israel is not a party to this Convention, and with this
reply we agree. From the point of view of customary
international law, it has already been explained that the
abduction of the Appellant is no ground for denying to the
Court its competence to try him once he is within the area
of its jurisdiction.
14. The next contention to be considered is that the crimes
of which the Appellant was convicted were at the time in the
nature of Acts of State and that, therefore, he is absolved
from criminal responsibility for those crimes. The theory
of `Act of State' means that the act performed by a person
as an organ of the state - whether he was the head of the
state or a responsible official acting on the government's
orders - must be seen as an act of the state only. It
follows that the state alone bears responsibility therefor,
and it also follows that another state has no right to
punish the person who committed the act, save with the
consent of the state whose mission he carried out. Were it
not so, the first state would be interfering in the internal
affairs of the second, which is contrary to the conception
of the equality of states based on their sovereignty (see
Kelsen, Peace through Law, p. 81 ff). The contention of
Counsel for the Appellant is, therefore, that the acts done
by his client towards the implementation of the Final
Solution had their origin in Hitler's decision to carry out
that plan, and consequently these acts were purely `Acts of
State,' responsibility for which does not rest on the
Appellant.
We utterly reject this contention, as did the District Court
(paragraph 28 of the Judgment). Our reasons are as follows:
(a) The concept of `sovereignty,' from which the doctrine of
`Act of State' derives, is not considered in our time to be
an absolute concept, as was made clear by Kunz in his
article "The Nottebohm Judgment" (A.J.I.L., vol. 54, p.
545):
"Any a priori or unlimited political concept of sovereignty
must, with inescapable logic, lead to the non-existence of
international law as law. Sovereignty is, therefore,
essentially a relative notion."
This also applies to the `Act of State' doctrine. Even
Chief Justice Marshall, who relied on it in Schooner
Exchange v. McFaddon (3 L. ed. 287), was particularly
careful to base it on the sole foundation that the state
within whose territory an illegal act was committed on
behalf of another state had expressly or impliedly consented
to waive its sovereign territorial right to punish therefor.
What is more, he added the reservation that where implied
consent is involved
"its extent must be regulated by the nature of the case, and
the views under which the parties requiring and conceding it
must be supposed to act" (p. 296).
Glueck, commenting on this passage, said (Harvard Law
Review, vol. 59, p. 426):
"As Marshall implied, even in an age when the doctrine of
sovereignty had a strong hold, the non-liability of agents
of a state for `Acts of State' must rationally be based on
an assumption that no member of the Family of Nations will
order its agents to commit flagrant violations of
international and criminal law."
As to the Opinion given in 1841 by the American Secretary of
State, Webster, in re McLeod, which is also based on the
said doctrine, and on which Kelsen relied (ibid., p. 83), it
was pointed out by Quincy Wright (A.J.I.L., vol. 41, p. 71)
that even then it had not gained general recognition:
"This position was disputed by many at the time on the
ground that the government's authority could not confer
immunity upon its agents for acts beyond its powers under
international law."
(b) In any event, there is no basis for the doctrine when
the matter pertains to an act prohibited by the law of
nations, especially when they are international crimes in
the class of `Crimes against Humanity' (in the wide sense).
Of such heinous acts it must be said that they are
completely outside the `sovereign' jurisdiction of the state
that ordered or ratified their commission, and therefore
those who participated in such acts must personally account
for them and cannot seek shelter behind the official
character of their task or mission, or behind the `Laws' of
the state by virtue of which they purported to act. Their
case may be compared with that of a person who, having
committed an offence in the interests of a corporation which
he represents, is not permitted to hide behind the
collective responsibility of the corporation therefor. In
other words, international law postulates that it is
impossible for a state to sanction an act that violates its
severe prohibitions, and from this follows the idea which
forms the core of the concept `international crime': that a
person who was a party to such a crime must bear individual
responsibility for his conduct. Otherwise, the penal
provisions of international law would be frustrated:
"...in modern times a State is - ex hypothesi - incapable of
ordering or ratifying acts which are not only criminal
according to generally accepted principles of domestic penal
law but also contrary to that international law to which all
states are perforce subject. Its agents, in performing such
acts, are therefore acting outside their legitimate scope,
and must, in consequence, be held personally liable for
their wrongful conduct ..." (Glueck, op. cit., pp. 427-428).
This was written before the Nuremberg Tribunal delivered its
judgment, and indeed already before World War II the defence
of `Act of State" was not regarded as an adequate defence to
the charge of an offence against the `laws of war'
(`conventional' war crime). Lauterpacht saw in this a
complete answer to the doctrine in question:
"...it is universally agreed that in any case persons who
have ordered the commission of war crimes are liable to
punishment for the violations of rules of warfare. It is
clear that in this vital respect the apparently established
doctrine breaks down altogether. The law declines, in this
matter, to accept the artificial distinction between the
state and those acting on its behalf. The fact that the
offender acts on behalf of the state is irrelevant. He is
bound personally by rules of international law, whether he
is acting in his personal capacity, in order to satisfy
private greed or lust, or as an organ of the state." (63
Law Quarterly Review (1947), pp. 442-443).
In support of the same opinion, Glueck (ibid., p. 428) cites
the case of the German general, Stenger, who was sentenced
in 1920 by the Supreme Court in Leipzig for the killing of
wounded French soldiers during World War I. In its judgment
the German court said:
"The lawfulness or unlawfulness of an act of war is
determined by the rules of international law. The killing
of enemies in war is in accordance with the will of the
state which wages the war and whose laws are decisive for
the question of legality or illegality only to the extent
that it is done under the conditions and within the limits
which international law established."
(c) Whatever may be the value of the above doctrine in
other cases, the principle laid down in Article 7 of the
Charter of the International Military Tribunal at Nuremberg,
to which the Tribunal (basing itself also on the case of ex
parte Quirin) adhered, is that that doctrine cannot afford a
defence in respect of international crimes, particularly
those defined in the Charter. To quote the court on this
issue:
"The principle of international law, which under certain
circumstances, protects the representatives of a state,
cannot be applied to acts which are condemned as criminal by
international law. The authors of these acts cannot shelter
themselves behind their official position in order to be
freed from punishment in appropriate proceedings. Article 7
of the Charter expressly declares: `The official position of
defendants, whether as heads of state, or responsible
officials in government departments, shall not be considered
as freeing them from responsibility, or mitigating
punishment.' On the other hand, the very essence of the
Charter is that individuals have international duties which
transcend the national obligations of obedience imposed by
the individual state. He who violates the laws of war
cannot obtain immunity while acting in pursuance of the
authority of the state, if the state, in authorizing action,
moves outside its competence under international law"
(Trial of Major War Criminals (Nuremberg, 1947, vol. 1., p.
223)).
The principle expressed in these views, which totally
negates the `Act of State' contention, is today one of the
`Nuremberg Principles,' which have become part and parcel of
the law of nations, and must be seen as having been rooted
in it in the past as well, as was explained in paragraph 11
above (see Article IV of the Genocide Convention; Principle
No. III of the Nuremberg Principles, as formulated by the
International Commission following upon the United Nations
resolution 177(II) - report of the Commission on its
proceedings, U.N. Gen. Ass. Off. Recs., 5th Sess. Suppl. No.
12A 1316 (1950) p. 12). The result is that this contention,
insofar as it refers to the crimes in question, finds no
support in international law, and can by no means avail the
Appellant.
(d) Counsel for the Appellant proceeded to contend that the
acts attributed to his client were committed within the
framework of the anti-Jewish decrees of the Nazi regime and
the personal orders of Hitler himself, decrees and orders
which, for all the injustice they entailed, had at the time
the force of law. To this contention there are two replies.
First, if anyone wishes to entrench himself behind the
formal concept of a Nazi `Law,' it must be said that the
Final Solution was at no time embodied in a `Law' - not,
indeed, because of any deference on the part of the Nazis to
the law, as if they had no wish to break it, but because
they were most anxious to hide their deeds in darkness and
not expose them to the civilized world (a fact which also
points to their having been aware of the criminal nature of
their deeds). It would appear, moreover, that the dominant
tendency in the jurisprudence of Western Germany today is to
invalidate ab initio the discriminatory and destructive
decrees of the Nazi regime, to deny them any legal validity
from the day they were issued or enforced, and to apply this
approach also to the `norms' which were of Hitler's own
creation. The view by which West German courts are guided
is that expressed in the formula stated by Radbruch (called
by the Attorney General "the greatest positivist in German
thought") in his post-war writings (Rechtsphilosophie (1950)
p. 353):
"Preference should be given to the rule of positive law,
supported as it is by due enactment and state power, even
when the rule is unjust and contrary to the general welfare,
unless the violation of justice reaches so intolerable a
degree that the rule becomes in effect `lawless law' and
must therefore yield to justice."
(The translation is by Professor Lon Fuller of Harvard
University; see also the article by Silving, p. 344, and the
extracts from German judgments therein cited; see also the
review of these judgments in Legal Theory by Friedman, 4th
ed., pp. 310, 311.)
It follows that, according to the above jurisprudence, not
only is the present contention of Counsel for the Appellant
completely untenable also in German law, but that also
according to the theory of Kelsen (ibid., note on p. 82) the
acts in question cannot be treated as `Acts of State.'
However, we need not resort to modern German judgments as
support for rejecting this contention. The second and
principal reason for our doing so is that the discriminatory
and plunderous decrees of that wicked state, and the
murderous edicts of the autocrat who directed its affairs,
are not laws in the eyes of international law and can by no
means give these terrible crimes the imprimatur of validity,
or absolve those who participated in them from the personal
responsibility they bear:
"Hitler's decrees were a protection neither to the Fuehrer
himself nor to his subordinates, if in violation of the law
of the community of nations" (U.S. v. Altstoetter,
L.R.T.W.C., vol. 3, p. 1011).
To conclude this subject, we can do no better than repeat
the words of the District Court:
"The very contention that the systematic extermination of
masses of helpless human beings by a government or regime
could constitute an `Act of State,' appears to be an insult
to reason and a mockery of law and justice."
The contention of `Act of State' is rejected.

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